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State v. Endsley10/19/2005
JUDGMENT: Reversed and Remanded
JUDGES: Hon. Gene Donofrio Hon. Joseph J. Vukovich Hon. Mary DeGenaro
{ } Defendant-appellant, Terry Endsley, appeals from a Columbiana County Common Pleas Court judgment convicting him of aggravated vehicular homicide following his no contest plea and the sentence that followed.
{ } On or about February 10, 2002, appellant was involved, as the driver, in a motor vehicle accident. His passenger, Benjamin Kastanek, died as a result of the accident.
{ } Appellant was also seriously injured in the crash. At the hospital, appellant's blood was drawn for purposes of medical treatment. A toxicology report revealed that appellant had a blood alcohol content of .171.
{ } A Columbiana County grand jury indicted appellant on May 2, 2003, on one count of aggravated vehicular homicide, a second-degree felony in violation of R.C. 2903.06(A)(1). R.C. 2903.06(A)(1) provides, in pertinent part, that no person, while operating a motor vehicle shall cause the death of another as the proximate cause of committing a violation of R.C. 4511.19(A), the driving while under the influence of alcohol or drugs statute. Three months later, a grand jury returned a superseding indictment amending the charge to a first-degree felony. It did so by adding a specification that appellant was driving under a suspended license at the time of the crash. According to R.C. 2903.06(B)(2), aggravated vehicular homicide in violation of R.C. 2903.06(A) is elevated to a first degree felony if at the time of the offense, the offender was driving under a suspension.
{ } Appellant filed a motion to suppress blood alcohol test results. He alleged, among other things, that his blood sample was not taken voluntarily and that it was not collected in accordance with R.C. 4511.19(D). He also filed a motion to dismiss the specification of driving under suspension. Here appellant alleged that the proceedings under which the suspension was ordered were unconstitutional and, therefore, could not be used to enhance the crime charged. The court held a hearing on the motions. It found that plaintiff-appellee, the State of Ohio, failed to establish substantial compliance with the two-hour rule for the drawing of blood. However, it held that medical blood test results were admissible with expert testimony for purposes of establishing a violation of R.C. 4511.19(A)(1). Additionally, it overruled appellant's motion to dismiss the specification.
{ } After the court overruled his motions, appellant entered a no contest plea. The court found appellant guilty and sentenced him to five years in prison. Appellant filed a timely notice of appeal on September 10, 2004.
{ } Appellant raises eight assignments of error, the first of which states:
{ } "DEFENDANT/APPELLANT WAS UNFAIRLY PREJUDICED AND HIS RIGHT TO DUE PROCESS WAS VIOLATED BY THE UNJUSTIFIABLE DELAY BETWEEN THE COMMISSION OF THE OFFENSE AND THE INDICTMENT OF DEFENDANT/APPELLANT."
{ } Appellant argues that appellee's delay in indicting him was unjustifiable and prejudicial. He claims that because of the delay he was unable to obtain an independent analysis of his blood sample. Additionally, he claims that he had no opportunity to have the vehicle involved in the crash inspected by an accident reconstruction expert because he did not know he would be charged with a crime until 15 months after the crash.
{ } As appellee notes, appellant failed to raise this issue in the trial court. When an appellant fails to raise pre-indictment delay by the state in the trial court, the issue is waived absent plain error. State v. Metz (Apr. 21, 1998), 4th
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